Check and Balance or Checkmate? – Part II

One obscure judge can issue a ruling that denies a President his duly authorized constitutional obligation to “faithfully” execute the laws passed by Congress in regards to illegal immigration. One judge on the Supreme Court can re-define a term in a statute contrary to what its authors said it was and thereby foist upon the entire nation the catastrophe laughably known as the Affordable Care Act. On, and on and on it goes, yet without any restraint being exercised by the Congress as a check against the overreach of judicial authority. As pointed out in the previous essay (Check and Balance or Checkmate? – Part I) Congress has both the authority and the responsibility to impeach judges who refuse to abide within the Constitutional confines of their office, but they have seldom done so and even our founders such as Thomas Jefferson scoffed at impeachment as a reliable check against judicial overreach.

Robert Yates, a judge from New York and a delegate to the 1787 Constitutional Convention, became so upset with the deliberations of the other delegates that he left before the draft of the Constitution was completed and became an ardent opponent to the ratification of the Constitution. Writing under the pseudonym “Brutus”, he authored one scathing essay after another on how abusive the judicial branch of the new government would become if the Constitution was ratified. Herewith are just a few (and he wrote many more along the same line) of his warnings:

“They” [i.e., justices of the Supreme Court] “will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal….

From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favour it; and that they will do it, appears probable….

When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? And they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mould the government, into almost any shape they please.” (January 31, 1788)

I ask you – if I had not identified who authored these words and when, would you not have thought they were written by someone today for this is exactly what the judicial branch has done over and over again? Truly, Yates – “Brutus” – was prophetic. So, if impeachment is a “paper tiger” vis-à-vis judicial overreach, what can be done when such overreach occurs? This will be our next matter to address.